Cabrera v. Bank of America, N.A.

This is a case about the age old question of whether one can get two bites at an apple. In the case before this Court, the question is whether the Plaintiffs can get a second bite in Maryland after dismissal by a United States District Court in North Carolina of a case brought by them on essentially the same facts. As explained below, this Court concludes that the Plaintiffs cannot.

BACKGROUND

The Plaintiffs, Luis and Jeanese Rosalie Cabrera, are a married couple. In early 2011, Jeanese Cabrera's employer, the United States Department of Agriculture, reassigned her to the Washington, D.C. area from Raleigh, N.C. The Department of Agriculture provided the Cabreras with a relocation package including the services of a relocation service provider called CapRelo that offered to purchase their Raleigh, N.C. home for its appraisal value of $190, 000, an amount approximately $16, 000 less than the outstanding balance of the mortgage loan held by Bank of America, N.A. ("BOA"). BOA directed the Cabreras to deal with a third-party, Loan Resolution Corporation ("LRC"), that handles BOA's short-sales. The closing was delayed numerous times, and the parties were unable to close the deal before the offer from the relocation service provider expired. Additionally, before suit was filed, the Cabreras allege that Defendant Select Portfolio Servicing, Inc. ("SPS") attached a notice to the front door of their Raleigh home, and damaged the lawn by using a "commercial grade" lawn mower.

On October 17, 2011, the Cabreras filed a complaint in the United States District Court for the Eastern District of North Carolina against BOA and LRC. They asserted "five causes of action against both defendants: breach of contract, misrepresentation, promissory estoppel, unfair and deceptive trade practices, and unjust enrichment." Cabrera v. Bank of America, N.A., No. 5:11-CV-563-FL, 2013 WL 551697, at *1 (E.D. N.C. Feb. 12, 2013). On February 12, 2013, the court dismissed without prejudice the Cabreras' contract, misrepresentation, unfair and deceptive trade practices, and unjust enrichment claims, dismissed with prejudice their promissory estoppel claim, and denied without prejudice their motion for leave to file an amended complaint. Id. at *7.

On February 15, 2013, the Clerk of the North Carolina court entered a judgment reflecting the granting of the Defendants' motions to dismiss in their entirety, the denial of Plaintiffs' motion for leave to file an amended complaint, and concluded by stating that the Plaintiffs "shall have and recover nothing from this action." ECF No. 41. The Cabreras moved for relief from the Order and Judgment and filed a second motion to amend their complaint. On March 8, 2013, the North Carolina court entered an Opinion and Order denying relief from the judgment. ECF No. 47. In addition, leave to file a second amended complaint was denied, the court concluding that the Cabreras had not provided or forecasted "any additional facts, beyond what is stated in the complaint, so as to support their motion to amend." Id. Concluding that any amendment to the complaint would be "futile, " the motion to amend was denied. Id. No appeal was taken and no further proceedings have taken place in that court.

Undaunted by their failure to obtain relief in the United States District Court for the Eastern District of North Carolina, the Cabreras filed a complaint in the Circuit Court for Prince George's County, Maryland on or about April 18, 2013. BOA removed the case to this Court and on June 6, 2013, BOA and LRC filed Motions to Dismiss. ECF Nos. 8, 10. On June 25, 2013, the Cabreras filed an amended complaint alleging 1) breach of contract against BOA and LRC, 2) detrimental reliance against BOA and LRC, 3) negligent hiring and retention against BOA and LRC, 4) intentional misrepresentation against LRC, 5) a violation of the Maryland Consumer Protection Act against BOA and LRC, 6) a violation of the Maryland Mortgage Fraud Protection Act against BOA and LRC, 7) Defamation and Defacement of Property against BOA, [1] and 8) respondeat superior against BOA. ECF No. 29. BOA & LRC filed Motions to Dismiss the Plaintiffs' Amended Complaint. ECF Nos. 45, 47.

STANDARD OF REVIEW

A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) tests the sufficiency of the complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). To survive a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations omitted). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id .; see also Simmons & United Mortg. & Loan Invest., 634 F.3d 754, 768 (4th Cir. 2011) ("On a Rule 12(b)(6) motion, a complaint must be dismissed if it does not allege enough facts to state a claim to relief that is plausible on its face.") (quotation and emphasis omitted). "Thus, [i]n reviewing a motion to dismiss an action pursuant to Rule 12(b)(6)... [a court] must determine whether it is plausible that the factual allegations in the complaint are enough to raise a right to relief above the speculative level.'" Monroe v. City of Charlottesville, 579 F.3d 380, 386 (4th Cir. 2009) (quoting Andrew v. Clark, 561 F.3d 261, 266 (4th Cir. 2009)).

ANALYSIS

I. Breach of Contract

The only contract alleged to have been breached in this case is one that the Cabreras claim to have entered into while they were in North Carolina. Accordingly, the question of contract formation is governed by North Carolina law and, fortunately, this court has the benefit of a careful and exhaustive analysis of that issue by the United States District Court for the Eastern District of North Carolina which has already concluded that there cannot be a claim for breach of contract in this case. The Cabreras were unsuccessful in convincing the North Carolina federal court to modify its judgment, and that court also declined to permit an amendment of the complaint in that court because to do so would have been futile. Their claims can fare no better here, and there is simply no "second bite at the apple" available to them. Accordingly, for the reasons stated in the decision in the United States District Court for the Eastern District of North Carolina, the motions to dismiss Count I of the Amended Complaint will be granted.

II. Detrimental Reliance

This count of the Cabreras' Amended Complaint is indistinguishable from the promissory estoppel count included in the complaint filed in the North Carolina federal court. Once again, this claim made by the Cabreras has been addressed, and resolved adversely to them, by the federal court in North Carolina. For the reasons relied upon by that sister federal court, this Court also ...

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